PEOPLE v. HALL

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Defendant appeals of right from his jury trial
convictions for first-degree felony murder, MCL 750.316; arson of
real property, MCL 750.73; assault with intent to rob while
armed, MCL 750.89; and first-degree criminal sexual conduct
(CSC), MCL 750.520b(1)(c). As a result of these convictions,
defendant received life imprisonment for the murder conviction,
20 to 40 years’ imprisonment for both the assault and CSC
convictions, and 5 to 10 years’ imprisonment for the arson
conviction. We affirm in part, reverse in part, and remand this
case for resentencing.

I. Facts and Proceedings

Defendant’s convictions arose out of the
attempted robbery of King’s Garden Health Spa in Battle
Creek in the early morning hours of January 27, 1999.
Eyewitnesses testified that codefendants and two other
individuals[1]entered the spa and asked for
money. Frustrated that they could not find any money, the
codefendants began beating the four women present inside the spa.
While three of the women were being beaten, defendant sexually
assaulted the fourth. After being sexually assaulted by
defendant, the fourth woman was also beaten by a codefendant. As
a result of the beatings, three of the women fell unconscious;
two regained consciousness, noticed that the building was on
fire, screamed for everyone to get out, and were able to flee the
building. The other two women in the spa died, one from carbon
monoxide and smoke inhalation[2]and the other from a broken
pelvis, a stab wound, and burns.

After the incident, Angela Chase spoke to her
mother about what had occurred. Apparently, based on this
conversation, Chase’s parents informed the police of
defendant’s and Chase’s potential involvement with the
incident. Through Chase’s parents, the police located Chase
on January 31, 1999. Defendant was with Chase when the police
located her, and based on the information provided by
Chase’s parents, took defendant into custody.

Defendant, who was fifteen years old at the
time of his arrest, was taken to the police station and advised
of his Miranda[3]rights. Defendant’s parents
were not present during the interrogation, however, the police
apparently attempted to contact defendant’s grandmother
prior to questioning, and the police spoke with defendant’s
grandmother shortly after the interview had taken place. Although
defendant had never been in police custody prior to his arrest in
this case, he apparently had had more than de minimus prior
contact with the police. Defendant waived his Miranda
rights and agreed to give a statement.

During questioning, which lasted approximately
forty five minutes, defendant admitted that he was present when
the killings and arson took place, but denied any involvement in
these crimes. Defendant further denied seeing or participating in
any sexual assaults. While defendant was encouraged to be
truthful, he was not coerced or abused during the interview. As a
result of the police investigation, defendant was charged with
one count of open murder,[4]two counts of felony murder,[5]one
count of arson,[6]four counts of assault with intent to rob while armed,[7]
one count of CSC-I,[8]and one count of felony-firearm.[9]Before trial, defendant moved to suppress his statement
to the police, arguing that the statement was taken in violation
of MCL 764.27 and also that defendant’s statement was not
knowingly and voluntarily made. The trial court found that based
on the totality of the circumstances, defendant’s statement,
while violative of MCL 764.27, was knowing and voluntary.
Specifically, the trial court noted that defendant had been read
his Miranda rights; that he understood those rights and
chose to waive them; that the questioning was not coercive or
drawn out; that the police attempted to contact defendant’s
grandmother prior to questioning; that defendant had had previous
contact with the police; and that defendant was not intoxicated,
ill, abused, or threatened when he decided to waive his Miranda
rights. Thus, defendant’s statement, which had been
audiotaped, was played for the jury at trial.

Defendant did not testify at trial. His counsel
did cross-examine prosecution witnesses and call witnesses on
defendant’s behalf. At the close of the case, defendant
moved for a directed verdict on all the charges except the
assault with intent to rob while armed charges. The trial court
denied this motion on all the charges except the open murder
charge, which it dismissed, finding that the evidence presented
would not support a finding of premeditation. Thus, the only
murder counts before the jury at the time of deliberations were
the felony murder counts. Following deliberations, the jury
returned a verdict acquitting the defendant of one of the felony
murder counts, three of the four assault with intent to rob while
armed counts, and the felony-firearm charge. However, the jury
found defendant guilty of the remaining charges.

II. Analysis

A. Defendant’s Statement to Police

Defendant asserts, on two alternate grounds,
that the trial court erred by not suppressing his statement.
First, defendant contends that his statement to the police should
have been suppressed solely because the dictates of MCL 764.27
and MCR 5.934, which govern the arrest, interrogation, and
custody of juveniles, were not followed. Second, defendant
contends his statement was involuntary considering the totality
of the circumstances, including the failure of the police to
comply with MCL 764.27 and MCR 5.934. We disagree with both
arguments.

In People v Good, 186 Mich App 180; 463
NW2d 213 (1990), this Court held that a statement obtained in
violation of MCL 764.27 and MCR 5.934 is not subject to automatic
suppression because of the violation. Rather, the violation is
considered as part of the totality of the circumstances to
determine whether the statement was voluntary. See also In re
SLL, 246 Mich App 204, 209; 631 NW2d 775 (2001); People v
Givans, 227 Mich App 113, 121; 575 NW2d 84 (1997), and People
v Rode, 196 Mich App 58, 69; 492 NW2d 483 (1992), rev’d
on other grounds sub nom People v Hana, 447 Mich 325; 524
NW2d 682 (1994). Accordingly, defendant’s first claim of
error must fail and we address defendant’s second argument.

A trial court’s findings at a suppression
hearing are given deference by this Court. People v Abraham,
234 Mich App 640, 644; 599 NW2d 736 (1999); People v Mendez,
225 Mich App 381, 382; 571 NW2d 528 (1997). Therefore, while we
conduct an independent review of voluntariness, we will not
disturb the trial court’s factual findings unless they are
clearly erroneous. People v Sexton (After Remand), 461
Mich 746, 752; 609 NW2d 822 (2000); People v Givens, 227
Mich App 113, 119; 575 NW2d 84 (1997). A finding of fact is
clearly erroneous if, after reviewing the entire record, an
appellate court is left with a definite and firm conviction that
a mistake has been made. In re SLL, supra at
208-209; Givans, supra; Mendez, supra.

In Givans, supra at 121, this
Court provided a list of factors to be considered in determining
whether a juvenile’s statement is voluntary:

The factors that must be considered in
applying the totality of the circumstances test to
determine the admissibility of a juvenile’s
confession include (1) whether the requirements of Miranda
v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694
(1966), have been met and the defendant clearly
understands and waives those rights, (2) the degree of
police compliance with MCL 764.27; MSA 28.886 and the
juvenile court rules, (3) the presence of an adult
parent, custodian, or guardian, (4) the juvenile
defendant’s personal background, (5) the
accused’s age, education, and intelligence level,
(6) the extent of the defendant’s prior experience
with the police, (7) the length of detention before the
statement was made, (8) the repeated and prolonged nature
of the questioning, and (9) whether the accused was
injured, intoxicated, in ill health, physically abused or
threatened with abuse, or deprived of food, sleep, or
medical attention.

In the present case, as noted above, before
questioning defendant the police attempted to reach
defendant’s grandmother but were unable to reach her until
defendant’s interview was completed. Defendant’s
statement was recorded, and the transcript establishes that
defendant was advised of his Miranda rights, stated that he
understood them, and waived them. The questioning was not unduly
prolonged or coercive, and defendant was not abused. See Fike,supra at 182. Although MCL 764.27 and MCR 5.934 were
violated, defendant was of reasonable intelligence and had
sufficient experience with the police that these violations are
not controlling. In summary, the evidence establishes that the
trial court did not clearly err by finding that defendant’s
statement to the police was voluntary. Sexton, supra;Givens, supra at 119.

B. Improper Jury Instructions

Defendant next asserts that the trial court
erred when it failed to instruct the jury on the crime of
second-degree murder. Because we are bound by People v Jenkins,
395 Mich 440, 442; 236 NW2d 503 (1975), we agree. This Court
reviews claims of instructional error de novo. People v
Hubbard (After Remand), 217 Mich App 459, 487; 552 NW2d 493
(1996).

As noted above, the jury was neither instructed
on the elements of second-degree murder nor provided with
second-degree murder as a possible verdict on the verdict form.
In Jenkins, supra at 442, our Supreme Court quite
clearly held that in all cases in which first-degree murder is
one of the charged offenses, the trial court must instruct the
jury on the necessarily included lesser offense of second-degree
murder:

Because of the significant differences
in the penalties between first- and second-degree murder,
and because every charge of first-degree murder
necessarily includes the lesser offense of second-degree
murder, in every trial for first-degree murder, including
felony murder, the trial court is required to
instruct the jury sua sponte, and even over objection, on
the lesser included offense of second-degree murder. [Id.
(emphasis added).]

Because the trial court failed to instruct the
jury on second-degree murder, it committed error. Thus, we must
determine whether this error requires reversal of
defendant’s first-degree murder conviction.

On appeal, the prosecution argues that Jenkins
should no longer apply to felony murder convictions. However,
because we are required by stare decisis to follow decisions of
our Supreme Court, Fletcher v Fletcher, 200 Mich App 505,
511; 504 NW2d 684 (1993), we must reject this argument.

Nevertheless, we do take the occasion to note
that in the present case the trial court, prosecutor and defense
counsel all agreed that the evidence would not support, standing
alone, a second degree murder verdict against defendant. In
addition, besides stipulating that a second degree murder
instruction should not be given to the jury, after the trial
court had completed its instructions to the jury, defense counsel
expressed satisfaction with the instructions as given by the
Court.

In People v Carter, 462 Mich 206, 612
NW2d 144 (2000), the Supreme Court held that when defense counsel
expressed satisfaction with the trial court’s proposed and
subsequent instructions to the jury, such approval constitutes a
waiver that extinguishes any error regarding the instruction. Id,215-216. The Court stated that:

"[W]hether a particular right is
waivable; whether the defendant must participate
personally in the waiver; whether certain procedures are
required for waiver; and whether the defendant’s
choice must be particularly informed or voluntary, all
depend on the right at stake." It is presumed that
waiver is available in "’a broad array of
constitutional and statutory
provisions’…." While the defendant must
personally make an informed waiver for certain
fundamental rights such as the right to counsel or the
right to plead not guilty, for other rights, waiver must
be effected by action of counsel.

"’Although there are basic
rights that the attorney cannot waive without the fully
informed and publicly acknowledged consent of the client,
the lawyer has-and must have-full authority to manage the
conduct of trial.’ As to many decisions pertaining
to the conduct of the trial, the defendant is
"deemed bound by the acts of his lawyer-agent and is
considered to have ‘notice of all facts, notice of
which can be charged upon the attorney’." Thus,
decisions by counsel are generally given effect as to
what arguments to pursue,…what evidentiary
objections to raise,…and what agreements to conclude
regarding the admission of evidence…. Absent a
demonstration of ineffectiveness, counsel’s word on
such matters is the last." Id., 217-218
(citations omitted).

Further, the Court reiterated that counsel may
not harbor error as an appellate parachute. Id, 214.

The facts presented herein raise the question
whether trial counsel can acquiesce in, and thus waive any error
created by, the trial court’s determination that contrary toJenkins, the jury should not be instructed on the elements
of second degree murder in a case charged as first degree felony
murder, because of the specific evidence in that case. Since we
are bound by Jenkins, we invite the Supreme Court to
consider this important question.

In summary, Jenkins compels us to
reverse defendant’s first-degree murder conviction and
remand this case for both entry of a conviction on second-degree
murder and sentencing on that conviction. Jenkins, supra
at 443. In addition, because defendant’s sentences for his
other convictions may have been affected by the conviction for
first-degree murder, we also remand for resentencing on all of
defendant’s remaining convictions. People v Plummer,
229 Mich App 293, 309; 581 NW2d 753 (1998). However, if, on
remand the prosecution believes that justice would be best served
by seeking a new trial on the felony murder charge, it may do so
by providing the trial court with notice of that desire before
resentencing. Jenkins, supra at 442-443. Finally,
we invite the Supreme Court to consider whether Jenkins is
viable as it applies to the facts in this case, where the error
resulting from the trial court’s failure to instruct the
jury on the elements of second degree murder was arguably
extinguished as provided by People v Carter, 462 Mich 206;
612 NW2d 144 (2000).

C. Defendant’s Double Jeopardy Claim

Defendant’s third contention on appeal is
that that his convictions for felony murder and assault with
intent to rob while armed constitute a violation of double
jeopardy, US Const, Am V; Const 1963, art 1, § 15. We
disagree. We review a trial court’s determination of whether
a defendant’s convictions violate the constitutional ban
against double jeopardy de novo. People v White, 212 Mich
App 298, 304-305; 536 NW2d 876 (1995).

Defendant contends that because the underlying
felony in which his felony murder conviction was predicated was
armed robbery, he could not also be convicted of assault with
intent to rob while armed. However, a review of the felony
information and the jury verdict in this case reveals that
defendant’s convictions for felony murder and assault with
intent to rob while armed involved two different victims. Because
double jeopardy does not apply to crimes committed against
different victims, even if the crimes occurred during the same
criminal transaction, defendant’s convictions for felony
murder and assault with intent to rob while armed did not violate
double jeopardy principles. People v Lugo, 214 Mich App
699, 708; 542 NW2d 921 (1995); People v Winquest, 115 Mich
App 215, 218; 320 NW2d 346 (1982). Accordingly, defendant is not
entitled to relief from his assault conviction.

Affirmed in part, reversed in part, and
remanded for resentencing. We do not retain jurisdiction.

/s/ Kurtis T. Wilder
/s/ Janet T. Neff
/s/ Martin M. Doctoroff

FOOTNOTES:

[1]Codefendants Darrin Mills and
Jamie Maclam were tried separately from defendant and found
guilty of assault with intent to rob while armed, MCL 750.89, and
second-degree murder, MCL 750.317, respectively. Each was
sentenced to life in prison. A fourth person, Angela Chase drove
the defendant and his codefendants to and from the murder scene
and received immunity from prosecution for her testimony at
trial.

[2]Defendant’s felony murder
conviction arose out of the death of this woman; he was found not
guilty of the other death.